William B. Groseclose v. Department of the Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILLIAM B. GROSECLOSE,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
2011-3078
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated case nos. SF1221080524-B-1 and
SF1221080635-B-1.
__________________________
Decided: January 20, 2012
__________________________
WILLIAM B. G ROSECLOSE, of San Luis Rey, California,
pro se.
JOSHUA A. M ANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, United States Department of Justice,
of Washington, DC, for respondent. With him on the brief
were TONY WEST, Assistant Attorney General, JEANNE E.

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GROSECLOSE v. NAVY 2
D AVIDSON , Director, and REGINALD T. BLADES , JR., Assis-
tant Director.
__________________________
Before NEWMAN , LINN , and MOORE, Circuit Judges.
PER C URIAM.
William B. Groseclose (“Groseclose”) appeals a final
decision of the Merit Systems Protection Board (“Board”)
affirming the administrative judge’s (“AJ”) determination
that Groseclose failed to establish a claim under the
Whistleblower’s Protection Act. Because the Board’s
findings are supported by substantial evidence, this court
affirms.
I. BACKGROUND
Groseclose worked for over four years, through Febru-
ary 2008, as a branch manager at the Department of the
Navy’s (“Navy” or “Agency”) Integrated Combat Systems
Test Facility (“ICSTF”) at Port Hueneme in San Diego,
California. Donald A. Potenza (“Potenza”) was the site
director at ICSTF and Groseclose’s supervisor during this
entire period. Potenza described Groseclose’s duties to
include managing personnel schedules, handling person-
nel actions, and assuring that ICSTF met its testing
deadlines.
A. First and Second Allegedly Protected Disclosures
In late 2007 through early 2008, Groseclose became
concerned over an ongoing conflict between ICSTF em-
ployee Rick Merriman (“Merriman”) and Merriman’s
supervisor Paul Salerni (“Salerni”), which led Merriman
to disobey Salerni’s orders on various occasions. In late
January and early February 2008, Merriman called
Groseclose at home to express his frustration with
Salerni, and Groseclose perceived Merriman as being
“pushed to the edge” and potentially suicidal. Groseclose

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GROSECLOSE v. NAVY 3
disclosed his concerns about Merriman to Potenza and
Salerni on January 29. Potenza responded by immedi-
ately meeting with Salerni, Gary Lawrence (“Lawrence”)
of Human Resources (“HR”), and a union representative.
Potenza, Lawrence, and Salerni decided it was still ap-
propriate to reprimand Merriman for failing to follow
Salerni’s orders and they arranged for an in-person meet-
ing with Merriman. Potenza testified to further reporting
Groseclose’s concerns to the appropriate authorities
within the Agency, including ICSTF security and “higher
command.” Potenza also informed Groseclose that he had
appropriately dealt with the matter.
Despite Potenza’s actions, on February 5, 2008, Grose-
close sent the first allegedly protected disclosure: an email
to Potenza’s direct supervisor Wesley Holser (“Holser”)
and Lawrence in HR, titled “!!!! EXTREME SAFETY
ISSUE !!!!” in the subject line, and stating, inter alia, that
“[Merriman] said suicide has crossed his mind,”
“[Merriman] feared that [] Salerni may use the illegal
knife he carries,” and “Potenza [is] unfit [as] a leader for
endangering his workforce.” Potenza learned of the email
that day and called Groseclose, ordering him not to fur-
ther involve himself in the situation and again explaining
that he was handling the situation properly. Later that
same afternoon, after Potenza’s call, Merriman sent the
second allegedly protected disclosure: another email to
Holser and Lawrence to explain Potenza’s communication
with him and reiterate his beliefs that Merriman was
potentially violent and that Potenza was not handling the
situation properly. The next day, Stephen Mason (“Ma-
son”), the ICSTF lead engineer and acting site director at
the time, investigated Groseclose’s concerns and con-
cluded that Merriman was not dangerous to anyone and
that Groseclose was only energizing and escalating the
situation in a negative manner.

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GROSECLOSE v. NAVY 4
B. Third Allegedly Protected Disclosure
On February 5, 2008, the same day as the first two al-
legedly protected disclosures, Groseclose made the third
allegedly protected disclosure, which was unrelated to the
Merriman issue. This disclosure related to ICSTF sup-
port for testing of a certain naval combat system. In late
2007, ICSTF’s sponsor, Naval Sea Systems Command
(“NAVSEA”), decided to move this particular testing from
ICSTF’s facility to Wallops Island, Virginia. The testing
was scheduled to begin in April 2008. Prior to that date,
ICSTF was required to complete a “test bed validation.”
Groseclose and his project manager Mark Garcia (“Gar-
cia”) believed that a successful test bed validation re-
quired ICSTF personnel to integrate a warfare simulation
system, the Common Scenario Control Environment
(“CSCE”), at Wallops Island. Mason, the lead engineer,
disagreed. In addition, Potenza had funding concerns
regarding the CSCE integration that were based on
contractual restrictions, which he communicated to
Groseclose. Unbeknownst to Potenza or Mason, Grose-
close and Garcia met with NAVSEA representatives in
January 2008 to discuss NAVSEA support for implement-
ing the CSCE at Wallops Island.
On February 5, 2008, Groseclose sent an email to
Viviane Deering (“Deering”), the NAVSEA representative
on the project, stating that ICSTF was “seek[ing]
NAVSEA guidance on providing CSCE support at Wallops
Island.” Groseclose copied lead engineer and acting
supervisor Mason on this email. This was the first time
Mason learned of Groseclose’s earlier contacts with
NAVSEA, and Mason disagreed with Groseclose’s mes-
sage. Mason quickly replied to the email directing Grose-
close not to contact NAVSEA without his clearance and
asking him to recall the email. Groseclose recalled the
email and replied to Mason with another email stating
that he disagreed with Mason and saw nothing “wrong
with seeking specific guidance with respect to the support

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GROSECLOSE v. NAVY 5
our sponsor expects us to provide.” In so replying, Grose-
close blind-carbon copied Deering from NAVSEA on his
email to Mason expressing his disagreement with Mason’s
approach to the CSCE issue. Groseclose’s blind-carbon
copied email to Deering is the third allegedly protected
disclosure.
C. Challenged Personnel Actions
On February 8, 2008, after Mason and Potenza
learned of the blind carbon copy incident, Potenza en-
gaged in the following challenged personnel actions: (1)
the removal of Groseclose from computer access to pre-
vent him from further contacting NAVSEA against or-
ders; (2) the reassignment of Groseclose from his
supervisory branch manager position to a nonsupervisory
position in the same pay grade; and (3) a proposed a five-
day suspension, which the department manager, Holser,
approved, but only for two days. Potenza testified that he
believed this to be the minimum punishment required to
correct Groseclose’s insubordinate behavior. Potenza and
Mason testified that Potenza’s insubordination jeopard-
ized ICSTF by making ICSTF appear indecisive and
unreliable in performing testing operations for NAVSEA.
According to Potenza, NAVSEA was the “life blood” of
ICSTF, and if NAVSEA ceased to use ICSTF as its testing
facility, it would be detrimental to ICSTF and its person-
nel. With respect to Groseclose’s reassignment, Holser
indicated that it was appropriate because management
officials are “expected to exercise prudent judgment and
follow direction, neither of which [Groseclose] did.”
D. Groseclose’s Earlier Protected Disclosures
In 2007, in a separate action, the Board determined
that Groseclose had made protected disclosures from 2003
through 2006 about his supervisor at the time, Donna
Bedford (“Bedford”), who engaged in prohibited activity
by, inter alia, abusing her authority to accommodate a
retiring ICSTF employee in an independent contractor

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GROSECLOSE v. NAVY 6
position; however, the Board concluded that Groseclose
failed to establish that these disclosures contributed to
any of the personnel actions he raised, and this court
affirmed. Groseclose v. Dep’t of the Navy, M.S.P.B. No.
SF-1221-06-0368-W-1 (Apr. 15, 2007), affirmed by 277 F.
App’x 1019 (Fed. Cir. 2008). In this case, Groseclose
alleges that Potenza was the “retiring ICSTF employee”
that Bedford inappropriately accommodated, and that
this contributed to his challenged personnel actions here.
E. Proceedings Below
In September 2007 and August 2008, Groseclose filed
two individual right of action appeals alleging whistle-
blower reprisal with regard to various disclosures and
personnel actions, including those discussed above, which
are still at issue in this appeal. The Board originally
dismissed both appeals, but on review, the Board deter-
mined that it possessed jurisdiction, reversed both dis-
missals, and consolidated and remanded the appeals.
Groseclose v. Dep’t of the Navy, 111 M.S.P.R. 194 (2009).
On remand, the AJ concluded that Groseclose’s three
February 5, 2008, emails were not protected disclosures
and that the earlier protected disclosures were not related
to the challenged personnel actions, and thus affirmed the
Agency’s personnel actions. Groseclose v. Dep’t of the
Navy, Nos. SF-1221-08-0524-B-1 and SF-1221-08-0635-B-
1, slip op. at 10, 12, 27 (Apr. 20, 2010) (“Initial Decision”).
The Board denied Groseclose’s petition for review. Final
Decision (Dec. 3, 2010). Groseclose appealed, and this
court has jurisdiction under 5 U.S.C. § 7703(b)(1) and 28
U.S.C. § 1295(a)(9).
II. DISCUSSION
This court’s review of a Board decision is limited.
This court must affirm a decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law; (2) obtained without

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GROSECLOSE v. NAVY 7
procedures required by law, rule or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
Section 2302(b)(8) of the Whistleblower Protection Act
provides that:
Any employee who has authority to take, direct
others to take, recommend, or approve any per-
sonnel action, shall not, with respect to such au-
thority—
(8) take or fail to take . . . a personnel action with
respect to any employee . . . because of—
(A) any disclosure of information by an employee
. . . which the employee . . . reasonably believes
evidences –
(i) a violation of any law, rule, or regulation,
or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health and
safety, if such disclosure is not specifically
prohibited by law . . . .
5 U.S.C. § 2302(b)(8) (emphasis added). To assess
whether an employee’s belief is reasonable that his
disclosures evidence a scenario covered under
§ 2302(b)(8)(A), a reviewing court must ask what “a
disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the em-
ployee” would reasonably believe. Lachance v. White,
174 F.3d 1378, 1381 (Fed. Cir. 1999). “A purely
subjective perspective of an employee is not suffi-
cient.” Id. “The [Whistleblower Protection Act] is not
a weapon in arguments over policy or a shield for
insubordinate conduct.” Id.

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GROSECLOSE v. NAVY 8
A. First and Second Allegedly Protected Disclosures
Groseclose argues that his February 5 emails to
Holser and Lawrence disclosed what he reasonably
believed to be a “substantial and specific danger to
public health and safety.” According to Groseclose,
Salerni may have been carrying a knife, and
Merriman and Salerni were likely to engage in vio-
lence or harm themselves. The Agency counters that
Groseclose fabricated or exaggerated his concerns in
the emails, and that even if Groseclose did believe he
was disclosing a substantial and specific danger to
public health and safety, this belief was not reason-
able.
The AJ’s and the Board’s conclusion that these
emails were not protected disclosures is supported by
substantial evidence. Merriman testified that he
never told Groseclose that he was contemplating
suicide, never told Groseclose that he was going to
hurt himself, and never said anything indicating that
he would hurt Salerni or anyone in the Agency. Even
if Groseclose believed that Merriman was suicidal,
this belief was not reasonable.
With respect to Salerni’s alleged knife, Potenza
testified that when Groseclose expressed his concern
about the conflict between Merriman and Salerni
prior to the February 5 email, he never expressed
concern about Salerni carrying a knife. It was not
until the email to Potenza’s supervisor accusing
Potenza of being “unfit [as] a leader for endangering
his workforce” that Groseclose first mentioned this
supposed concern. Groseclose alleges no viable reason
to believe that he was truly concerned about Salerni
carrying a knife or that he believed Salerni would
actually use the knife.

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GROSECLOSE v. NAVY 9
B. Third Allegedly Protected Disclosure
Groseclose argues that his February 5 blind-
carbon copied email to Deering of NAVSEA disclosed
evidence of “gross mismanagement.” According to
Groseclose, without support for the CSCE warfare
simulation system at Wallops Island, the testing
facility was going to fail. The Agency counters that
Groseclose did not disclose gross mismanagement
because (1) the information disclosed was already
made known to NAVSEA in Groseclose’s January
2008 in-person meeting with NAVSEA and (2) rea-
sonable minds differed on the issue of how to provide
support, or whether it was necessary to provide sup-
port, for the CSCE at Wallops Island.
The AJ’s determination that Groseclose’s email to
Deering was not a protected disclosure is supported
by substantial evidence. First, the AJ found that
NAVSEA was already aware of Groseclose’s views on
the necessity of the CSCE system prior to the Febru-
ary 5 disclosure because Groseclose and Garcia met
with NAVSEA representatives in January 2008 to
discuss NAVSEA support for the CSCE system at
Wallops Island. Initial Decision at 28. Moreover, the
AJ found that even if Groseclose disclosed different
information in the February 5 email, he did not dis-
close gross mismanagement; he only disclosed that
the ICSTF managers disagreed with one another
about the proper course of action for implementing
the CSCE system. Id. at 30. As the AJ correctly
found, a reasonable person in Groseclose’s position
would understand that contractual funding restric-
tions, of which Groseclose was aware, were legitimate
reasons for the Agency to temporarily delay support
for a project. Id. at 31.

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GROSECLOSE v. NAVY 10
C. Groseclose’s Earlier Protected Disclosures
Groseclose argues that his earlier protected
disclosures contributed to Potenza’s challenged per-
sonnel actions in this case. According to Groseclose,
Potenza was the retiring employee that his former
supervisor Bedford had inappropriately helped to
employ post-retirement, and thus his earlier disclo-
sure of that information contributed to Potenza’s later
challenged personnel actions. For the reasons dis-
cussed above, substantial evidence supports the AJ’s
findings that the challenged personnel actions re-
sulted not from Groseclose’s past conduct but directly
and solely from Groseclose’s insubordination, which
Potenza believed jeopardized ICSTF’s relationship
with NAVSEA.
The court has thoroughly considered Groseclose’s
other arguments and concludes that they lack merit.
III. CONCLUSION
For the foregoing reasons, this court affirms the deci-
sion of the Board.
AFFIRMED
C OSTS
Each party shall bear its own costs.

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